The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1887-05-25
PRACTICAL AND FoRcIBLE REAsoNR WHY
WE SHOULD REoRGANIoE THE
SUPREME COURT.

~~~~~~
Thn Number of Supreme Judges
s.: Ill he Increased to Four, and
| COurt d: rrIDIG Should be Estab-
IisIicd.
anderson TRcHigcnccr.
| The recent decision of the Supreme
! Court of this State, on the right Of mar
ricd woman to mortgage her separate es-
tate to secure debt Of another, has only
served to bring ont the dissatisfaction
which exists all over the State, TO great
or or less extent, with the current, or
rather Lack Of current, of the judicial de-
Termination in South Carolina. There Is
scarcely ANYTHING settled on some ofthe
most important questions in the State,
and no person knows how'long things that
are now settled will remain so, ut the rate
with which decisions are changed in South
Carolina. Take the homestead, for in
stance, and it will be admitted that it is
almost impossible to guess what the law
of certain states of facts will be, for the
decisions of our Supreme Court on the
subject are decidedly inconsistent. The
trouble seemst to be the lack of practical
adiudicature for precedent by our Court.
Tiev undertake to regulate each case too
much on what they conceive to be the
merits of that particular transaction,
without sufficient regard for precedent,
or its effect uDon other cases. The result
is confusion in our laws of the most seri-
ous kind. Another trouble with the
Court, us at present organized, Is its tell
dencv to legislate.
In the married woman case, they hold
the words, "as to her separate property"
to be equivalent to "fOr the benefit of Der
separate property There is no warrant,
either in law nor in the use of the Eng
lish language, for such an assumption.
There is not, and never has been, any
writer since creation, so far as we have
read or heard, except the majority of the
Supreme Court of South Carolina, who
has made the words "as to- mean ''fOr
the benefit Of" The inconsistency of the
Court may be illustrated by the course of
adiudicature on the jurisdiction of f-the
Probate Court to sell land for partition,
and the adiudicature on the rights of mar
ried women. TO begin with, the Consti-
tuition establishes Probate Court, and
! prescribes certain duties. The Legisla-
t,re rave the Court these duties. and also
: the rimht to partition lana. The Supreme
court decided tlrat the constitution, hay
iuy expressed certain jurisdiction for
this court, was conclusive. and could not
be enlarged by the Legislature, and hence
in Davenport vs. Caldwell they de,'ided
that the Probate Judge had no jurisdic-
ton in partition Suits.
The Constitution enlarges the powers
of married women, and says what they
may do. 1t Itprovides that they may alien
ate, devise and bequeath their separate
property, as if unmarried. The Legisla-
| ture enlarges this grant, and says she may
contract and be contracted with the same
as if unmarried. The Supreme Court
holds, in this instance, that the Legisla-
ture. could enlarge the Constitution, and
makes valid these contracts.
A large amount of land had been par
titioned by the Probate Courts, and an
other case went back to the Supreme
Court, and this time they held that, al
though the Constitution excluded the
Probate Judge from selling land for par
ttion, that it was a common error over
the State, and that on the ground of this
common error such sales were valid and
binding. In other words, they placed the
| ignorance OF the people above the Consti-
tuition, and for the first time that we know
of in the history of Jurisprudence they
made ignorance of law higher law than
Constitutional provision.
The Legislature amended the law as to
married women by inserting the words
"as to her separate property,'j intending
to limit her power to contract, so as to
require her contracts to be made as to her
separate property, which would not give
a general liability on her part, but only a
| liability as to the property as to which
the contract was made applicable. These
words have been construed in New York
! in able judicial opinions. and on the
strength Of the belief that a mortgage
! from married woman was perfectly safe
and valid, thousands Of dollars have been
| loaned in this State. The former decis-
! ions Of the Supreme Court have contribu-
/ ted to these errors, and yet, in this i'll
stance, they hold the contracts and mort
cages to be void. They do not protect
| the creditors here OH the ground Of COM
mon error, although that common error
was as TO Il Statute, and not as to Con-
stitution, as in the other case. We did
! not, however, intend to make this article
criticism upon the Supreme Court, but
merely mention these things to Shnw the
necessity for change. What that change
is to he is receiving more than passing
consideration at this time, and we would
like to suggest to the profession the reor-
ganization of our judiciary in such way
as to combine the features, with slight
modification, of the old Court Of Errors
of South Carolina and the SupreiGa Court
of the United States. TO begin with, we
would have the Supreme Court consist of
la Chief Justice, and the5e Judges, so that
it would be necessary to have three
Judges concurring to render an opinion,
Where they divided equally 1T he case
| be sent up to the Court of Err =. which
should consist of all the Jud,:"', i'll tie
State, and meet, say once in two years, to
hear these eases, and any others which
the Supreme Court might deem ncreSsa-
ry to be determined by this highest Court.
One trouble with our Supreme Court, as
now organized, is the lack OF pricti e cX-
pcrience by the Court. IF these Judges
went among the people around the Cir
cults they would get many valuable ideas
of practice. and much practical infOrma-
ton as to the administration of the law
that they do not now have, and the effect
would, we btcieve, tend to practicaiize the
adiudicature in this State, which is now
too often forced and theoretical We
would accomplish this by requiring all OF
tho Judges, except the Chief Justice, to
! take their turns OH Circuit. We would
make up the Supreme Court by taking
for one year at Il time, in regular altcrlla-
! ton, three of the Circuit Judges. This
would elevate the Circuit bench, and
, make the Legislature careful always to
select the ableSt and best men for Circuit
Judges, and would combine theory and
practice in such way as to improve both
tho Circuit and Supreme Courts. 1t would
give us more careful and consistent adju-
dicatures, and tend to make our Supreme
Court reports what they were before the
war-a systematic, harmonious code OF
laws, ably expounded. and consistently